Expert view: September 12 coup generals can face trial

Expert view: September 12 coup generals can face trial

Kenan Evren (C), the chief of general staff at the time of the Sept. 12, 1980 coup, and other coup generals are seen together in this file photo.

March 21, 2010, Sunday/ 11:11:00
A large segment of society is pleased to hear that the constitutional reform package includes repealing Article 15 of the Constitution.

 This article gives immunity to the generals responsible for the Sept. 12, 1980 coup. But this move has also begun a debate over whether it is possible to try these generals for their crimes.

Some experts are quick to declare that the statute of limitations has passed and that the principle of “no crime, no punishment without a previous law on the matter” makes it impossible to bring the coup generals in front of a court. But other experts suggest that it is possible to try them. The principle of “no crime, no punishment without a previous law on the matter” states that there can be no crime committed, and no punishment meted out, without a violation of the penal law as it existed at the time. Another consequence of this principle is that only those penalties that had already been established for the offense at the time when it was committed can be imposed.

The government prepared a constitutional reform package which includes -- apart from repealing Article 15 of the Constitution -- the introduction of affirmative action for women, collective bargaining and giving civil servants the right to strike as well as restricting the authority of military courts, protection personal data, making political party closures more difficult and changing the structure of the Supreme Board of Judges and Prosecutors (HSYK).

Some experts, such as Supreme Court of Appeals Chief Prosecutor Vural Savaş, were quick to declare that even if Article 15 is repealed, it will not be possible to bring the generals responsible in front of a court.

“Unfortunately, it is not possible to try them due to a basic principle of law which indicates that if there is a regulation in favor of the defendant at the time of the crime and if this regulation has been changed to the detriment of the defendant, the new regulation will not affect the situation of the defendant,” he said.

‘No crime without law,’ but there was a law during the coup

International Federation for Human Rights (FIDH) Vice President Yusuf Alataş, a lawyer specializing in criminal law, does not agree with this opinion. He says that at first look, the principle of “no crime, no punishment without a previous law on the matter” is valid, but a closer look changes the situation. “When these generals committed this crime, their action had already been defined as a crime. In order to protect themselves, they made this law. So from the legal point of view, in their case, this principle does not apply,” Alataş told Sunday’s Zaman.

Alataş added that it would not be possible to judge any dictator and that any entity that holds legislative power and commits a crime against humanity would be able to save itself by passing legislation to protect itself.

He added that in order to define the Sept. 12 coup as a crime against humanity, it is enough to think about the cases of torture that occurred during the coup. He added that there is no statute of limitations for crimes against humanity, but said it would be difficult to establish a link between the coup generals and torturers in detention centers.

“Trying to establish such a link might make the issue complicated, but I think that after changing the Constitution, a law can be prepared to bring the people responsible for Sept. 12 to justice,” he said.

Statute of limitations discussion also irrelevant

Differing views also exist regarding the statute of limitations, with some arguing that the statute of limitations has already passed and others claiming that it has not expired for the leader of the generals, retired Gen. Kenan Evren.

Alataş and other experts suggest that the statute of limitations does not apply in the generals’ case so long as Article 15 of the Constitution is in effect. According to the Turkish Penal Code (TCK), the statute of limitations is 20 years. The generals were expecting to benefit from this in 2000, 20 years after the military takeover. However, former prosecutor Sacit Kayasu prepared an indictment against former President Evren, the coup leader, which resulted in Kayasu’s disbarment. With the indictment, the statute of limitations for Evren was extended for another 10 years.

Speaking to Sunday’s Zaman, Kayasu said that at the moment the indictment was submitted, the statute of limitations was extended by half of the original statute period. He said his indictment involved Evren and that this is why Evren’s case is different.

“But thinking about the statute of limitations is irrelevant here because the basic principle is very clear. As long as Article 15 remains, it is impossible for the victims to seek legal redress. This is called ‘practical impossibility.’ Think about a traffic accident; let’s say it results in a victim who falls into a coma for many years. This means the victim is unable to file a compensation suit. Due to the practical impossibility arising from these conditions, the law protects the rights of the victim and the statute of limitations is not applied. The situation regarding the Sept. 12 coup is the same as this,” he said.

Kayasu also noted that crimes committed by deputies who enjoy immunity are not subject to a statute of limitations and that the same principle is valid in the case of the generals because they too had immunity.

Alataş agrees with Kayasu and adds that the logic behind the statute of limitations should also be taken into account. “The statute period is valid when the state has the opportunity to investigate but does not use it, when there is no public interest in carrying out the investigation after all these years, when the evidence has been lost and so on. But here, all these reasons are invalid,” Alataş said.

According to Kayasu, those who cite the statute of limitations and the principle of “no crime, no punishment without a previous law on the matter” do not want the generals to be tried. “Even a student of law knows these facts. Those who claim that generals cannot be judges are biased just because they do not want them to be brought in front of a court,” Kayasu said.

Sept. 12 a crime against humanity

Many crimes against humanity were committed during the Sept. 12, 1980 coup. Forty-nine people were executed, 171 were killed by torture and 650 were detained for extended periods of time, most of them subjected to torture.

A total of 210,000 cases were opened in military courts, 85,000 people faced charges for “thought crimes,” 1,683,000 people were categorized by the state on the basis of their political and religious beliefs.

Prosecutors demanded capital punishment for 6,353 persons; 348,000 people were banned from traveling abroad; 14,509 civil servants were fired under the State of Emergency Law; 18,000 civil servants, 2,000 judges, 4,000 policemen and 5,000 teachers were forced to resign; 23,667 associations were banned, and political parties and unions were shut down.

More than 30,000 people were forced to leave Turkey. Thirty-nine tons of books were destroyed, and 937 movies were banned. Eight newspapers were shut down for a period of 195 days.

 

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